Court Dismisses Contributory Copyright Infringement and Fraud Claims

In a July 2, 2013 ruling, Judge J. Paul Oetken dismissed certain claims asserted by individual plaintiffs in three consolidated actions alleging copyright infringement, fraud, fraudulent concealment and breach of contract against defendant John Wiley & Sons, Inc. and two of its employees. Although their claims varied somewhat, the plaintiffs collectively essentially alleged that Wiley used their photographs in Wiley publications in ways that violated the scope of their licenses to Wiley, thus constituting copyright infringement. One plaintiff also asserted that the two individual defendants were responsible for the infringement, and all plaintiffs made claims about fraudulent statements or fraudulently concealed facts about the extent of Wiley's use of the photographs. Judge Oetken declined to dismiss the copyright infringement claims against Wiley, but did dismiss the infringement claims against the individual defendants. As to the infringement claims against the individuals, the Court noted that the only allegation in support of the claim was that the individuals "personally participated in Wiley's infringements and had knowledge, information, and control over such infringement." Judge Oetken ruled that the claim is insufficient because the plaintiff "has failed to state any fact-based allegations indicating that [the individuals] authorized, or played any part at all in the alleged infringement itself, as opposed to Wiley's conduct after the infringement."  The Court dismissed the fraudulent concealment and fraud claims as insufficiently specific under Rule 9(b), and dismissed the fraud claims on the further ground under Rule 12(b)(6) that plaintiffs did not allege any damages arising from the fraud that were different from the alleged copyright infringement damages.  The Court specifically rejected cases from other jurisdictions that did not insist so strictly on independent damages to state a fraud claim in this context.